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TMI Blog2011 (2) TMI 1496X X X X Extracts X X X X X X X X Extracts X X X X ..... l) new block of the hospital at ₹ 41,11,736/- as against the disclosed figure of ₹ 29,09,201/- per its accounts. The Revenue pursued the matter with the Hon ble Jurisdictional High Court, which, vide its Order dated 10.11.2009 (in I.T.A. Nos. 626,663, 676 1050/2009, copy on record), reversed the decision by the tribunal, holding that the DVO, being a specialized, professionally qualified person for the purpose of valuation, his report constituted an expert opinion and, therefore, reliable information and, thus, a valid basis for reopening an assessment, particularly where the difference in value, as in the instant case, was not insignificant, vacating the findings by the tribunal, remitting the matter back there-to for a decision on merits, on which the tribunal had not expressed any opinion in the first instance in view of its setting aside the assessments on legal ground/s. The Revenue is in appeal for the fourth year, i.e., A.Y. 2000-01(as against the assessee for the first three); its appeal (as well as the assessee s Cross Objection) for that year, also relating to the same cause of action; the assessment having been likewise set aside by the ld. CIT(A) following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctively. Further, the AO has allowed a self-supervision rebate of only 1% as against the accepted norm of 7.5% to 10%; the latter rate having been accepted by the tribunal in the case of P. V. Rajamma (supra). On being questioned by the Bench that the basic raw materials viz. steel, cement etc., are available across the country at uniform rates as the major and reputed suppliers are the companies with pan-India presence, as is also the case with sanitary goods, etc., he conceded there-to, stating that even so, there are other local purchases as well. 3.2 The ld. DR submitted that the assessee has not been able to point out any infirmity in the valuation report, which is by an officer of the rank of an Executive Engineer, valuing the assessee s property at ₹ 41.12 lakhs, as against its declared value of ₹ 29.09 lakhs. Secondly, referring to the relevant circulars adverted to by the ld. AR signifying Kerala PWD rates (PB 16-17), he claimed that the same are not applicable in view of their stated purpose, i.e., for fixation of standard rent. Further, taking us through the Rs.Abstract of Cost (PB pgs. 7-9), he pleaded that the assessee has been allowed rebate for each and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact, section 142A, brought on statute by Finance (No. 2) Act, 2004 (w.r.e.f. 15.11.1972), is only to facilitate such referral by the AO to the Valuation Officer (except where the assessment stands conclusively finalized before 30/9/2004, so as not to disturb settled matters, while the ones under dispute - as the present one - would not be governed by the exception). The decision by the jurisdictional high court expresses the same view as expressed earlier in the decision in the case of Bawa Abhai Singh v. CIT (Dy.), 253 ITR 83 (Del.) after an extensive review of the case law in the matter, following the decision by the apex court in ITO v. Selected Dalurband Coal Co. (P.) Ltd. (1996) 217 ITR 597 (SC). The decision by the apex court is based on the non-rejection of the assessee s accounts by the AO, and which could only be in the course of some proceedings under the Act, implying valid proceedings. The said decision is thus rendered in the context of some valid proceedings. Reading the same harmoniously, i.e., in consistence with the law in the matter as well as the other applicable provisions, we understand it as to hold that the referral to the Valuation Officer by the assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show before either authority that it had properly accounted for all the expenses on construction. In view of the foregoing, the assessee s case on its legal ground is not tenable, both on legal as well as factual considerations. 4.2 Coming to the merits of the case, i.e., of the addition/s effected u/s. 69B, we find that the matter has been examined in extenso by the first appellate authority, dealing with each of the issues raised by the assessee before him, delineating his findings at pgs. 9 to 14 of his impugned order (for the first three years). The same stands unrebutted. No infirmity therein, or in the Valuation Report dated 18.1.2000, which forms the basis of the Revenue s case, has been shown to us. In fact, the arguments advanced before us by the ld. AR were without reference to and de hors the same. The valuation report has been prepared after carrying out a detailed inspection of the building on 8.1.2000, duly incorporating the assessee s remarks/objections thereto (refer para 5.2 thereof). The Valuation Officer has himself taken pains to address each of the assessee s claims, as would be apparent from the deductions aggregating to ₹ 19.62 lakhs allowed by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. CIT (Assistant) (supra) would, therefore, not apply in the facts of the case. We, therefore, find no merit in the assessee s case. We decide accordingly. 4.3 For the fourth year (AY 2000-01), while the Revenue challenges the set aside of the assessment on legal grounds, the assessee s CO projects its grievance as on account of non-adjudication (a) of its ground in relation to the impugned valuation of its new hospital block; and (b) the other grounds raised before him, i.e., other than that in relation to the reopening of assessment. The ld. CIT(A) has not decided any of these issues as the reopening for the earlier (the first three) years had itself been struck down by the tribunal vide its order dated 21/3/2006, so that following the same; the reopening being for the same reason/s and qua the same material/s, stood also cancelled by him. As regards the latter issue (b), the assessee stands to be prejudiced by the said non-adjudication inasmuch as the assessment stands validated by the hon ble high court. The matter would therefore have to travel back to the file of the first appellate authority in all relation to all such grounds; his order being silent thereon. As regards ..... X X X X Extracts X X X X X X X X Extracts X X X X
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